The opinion of the court was delivered by
Simpson, C. J.The appeal in this case is from the decree of Judge Pressley above, and in this decree will be found a statement of all the facts material to the questions presented for our consideration.
We concur with the presiding judge as to the result, except so far as he dismissed the complaint as to the respondent, Thackston, with costs. If the appellant is a bona fide holder and owner of the mortgage debt, we think that Thackston was a proper party to these proceedings, and the appellant is entitled to hold him responsible until his note is satisfied out of some portion of the lands covered by the mortgage. The presiding judge may have believed that the assignment of the note and mortgage by Wilson to the appellant was pretensive and fraudulent, but he does not say so, and does not give that as his reason for dismissing the complaint as to Thackston, and we can find no sufficient warrant for this portion of his decree.
The basis of appellant’s action is the note of Thackston and the mortgage which he executed, and in a suit on that note and for the foreclosure of this mortgage he, Thackston, was a necessary party, whatever may be the equities between him and the other defendant. But, as already stated, we concur with Judge Pressley in holding that portion of the mortgaged premises in the possession of the appellant, Wilson, primarily liable for this debt as between Wilson and Thackston.
In the case of Marsh v. Pike, 10 Paige 596, Marsh had mortgaged certain real estate in New York to Pike. Marsh after-wards conveyed ■ the premises to another party, deducting the amount of the mortgage from the purchase money; the purchaser agreeing to pay off and discharge the mortgage.
Some time after this the grantee of Marsh conveyed to a third party, who also agreed with his grantor to pay off and satisfy the mortgage.
The court held that the effect of these several conveyances and agreements was, in equity, to place Marsh as a surety for the payment of the bond and mortgage, and to make the two purchasers the principal debtors — the first being primarily and the latter secondarily liable to him for the payment of the debt— and while he, Marsh, could not compel the mortgagee to pro*442ceed for foreclosure against the subsequent purchasers in possession, yet, by having the mortgage assigned to him, he would bo subrogated to the rights of the mortgagee and could proceed himself against the land. This case, in-its facts, is nearly on all fours with the case now under consideration. The only differerence is that the record does not show that Wilson, when he purchased from Ford, agreed to satisfy the mortgage debt. ITe had knowledge, however, of this statement of Ford, and he knew that Ford, when he conveyed to him, Wilson, was in failing circumstances, and these facts will be found sufficient, we think, to bring Wilson under the operation of the doctrine announced in Marsh v. Pike,in accordance with the fundamental and well-established principles of equity — principles that commend themselves to every lover of justice and fair dealing between man and man.
Thackston sold his land to Ford; leaving in the hands of Ford enough of the purchase money to pay off the mortgage, which Ford solemnly agreed in writing to discharge. Ford, on approaching insolvency, sold to Wilson for the precise sum which Ford had paid in cash to Thackston — $1000—Wilson being fully informed of the mortgage and the agreement of Ford. Wilson then paid off the mortgage and had it assigned to himself, and instead of instituting proceedings thereon in his own name, as assignee, assigned it to the present appellant, who has brought the action.
All this may have been fair and bona fide, but it has the appearance of an arrangement to defeat Thackston of his just rights. Whether this be so or not, abstract justice is with him, and it is gratifying to know- that there are well-established principles of equity which will protect him.
In the case of Massey v. McIlvaine et al., 2 Hill’s Ch. 322, the high, equitable doctrine that where one purchases property subject to the equity of another, with notice of this equity, he is bound by it, and holds the property subject to the equitable rights of the other, was recognized and enforced. ' The rule in equity, as was said in that case, being, that an agreement in writing to convey land in consideration of an adequate price will, in equity, bind the estate and prevail against any subsequent lien; *443and, as was done in that case, will follow the land into the hands of any subsequent purchaser, with knowledge of the equity growing out of the agreement. In that case 'this doctrine was fully discussed by Chancellor Johnson, who delivered the opinion of the court, sustaining it by various authorities. And many other cases might be referred to, but the general principle is familiar, and has been long established.
Now, in the case before this court, there can be no doubt that had Lenhardt, the original mortgagee, instituted proceedings to foreclose this mortgage against Thackston and Ford before Ford conveyed to Wilson, Thackston’s equity arising under the agreement by Ford to pay off the mortgage and the bond which he had retained as part of the purchase money to pay would have entitled Thackston to claim that the mortgage of Lenhardt should be primarily foreclosed on that portion of the land which he had conveyed to Ford. And under the code, (Section 298,) which authorizes the court to adjust the rights between defendants, as well as enforce those of the plaintiff, the court would not have hesitated to afford him that relief.
Such being the fact, and Wilson, according to the finding of Judge Pressley, having bought, not only with a knowledge of the mortgage, but also of the express agreement of Ford, will not the equity of Thackston, as held in the cases referred to above, follow the land into the possessiouof Wilson? We think so, and it is so adjudged.
The decree of Judge Pressley is affirmed except as to the,dismissal of the complaint as to Thackston, with costs. The mortgage should be foreclosed on the land in possession of Wilson first, and if that should fail to satisfy the debt, then the remainder should be paid from the land covered by the mortgage in the possession of Thackston, and the ease is remanded for'this purpose, should the plaintiff desire to proceed further.
McIver and McGowan, A. J.’s, concurred.